Former President Trump argues social media bans violate his free speech rights under the First Amendment.

Former President Trump took aim at social media giants last week after announcing that he is suing Twitter, Facebook, and Google in a class-action lawsuit for violations of his First Amendment rights.

Trump announced his lawsuit on Wednesday in a news conference that was held at his Bedminster, New Jersey golf resort. He was joined by former officials who now head the former president’s nonprofit policy group, America First Policy Institute.

Trump shared at the conference, "We are demanding an end to the shadow-banning, a stop to the silencing, and a stop to the blacklisting, banishing, and canceling that you know so well." As part of the lawsuit, Trump is demanding that his social media accounts be reinstated immediately. He is also asking the courts to impose “punitive damages” against the tech giants that banned him off of their platforms after the Capitol Hill riots.

There appear to be two prongs in the lawsuit against the social media giants. The first is that Trump’s freedom of speech was violated after the tech companies blocked him for what were posts that some have argued helped incite the rioters on January 6. Analysts have pushed back against this argument explaining that while a private business cannot violate another’s freedom of speech, it is also protected in making its own choices according to its business. Just because Trump’s accounts were deleted does not necessarily mean his freedoms of speech were violated, especially since the social media platforms point to Trump violating their user agreements.

Facebook, for example, explained that Trump was removed from the platform after they deemed Trump using Facebook brought with it risks that “are simply too great.” Earlier last month, Facebook announced that Trump’s suspension from the platform was to be extended. They explained in a statement, “Given the gravity of the circumstances that led to Mr. Trump’s suspension, we believe his actions constituted a severe violation of our rules which merit the highest penalty available under the new enforcement protocols. We are suspending his accounts for two years, effective from the date of the initial suspension on January 7 this year.”

Attorney and News Reporter Barbara Sharp explains it this way. “One issue here is whether these social media companies are “public forums” or can otherwise be regulated and if so, how censorship by online monopolies is to be addressed.”

“It’s a new frontier in some ways,” says Sharp, “but by analogy, these companies could be deemed similar to common carriers or public utilities and thus, able to be regulated and prohibited from discrimination.” Sharp concludes, “It’s really about time this issue comes before the courts.”

The second prong to Trump’s lawsuit lies in the complaint aimed at Google CEO Sundar Pichai and YouTube. Trump is asking for the courts to declare Section 230 of the Communications Decency Act to be ruled unconstitutional. Since the start of Trump’s term in office, this legislation, which protects hosts on the internet like Twitter and Facebook from liability against third-party posts, has routinely popped up. Throughout his presidency, Trump along with many other conservatives routinely pushed back against social media companies, especially Facebook, for allegedly censoring conservative articles, posts, and other media that were circulated through the platform. Some conservatives have argued that through this censorship, social media platforms along with their owners were able to push liberal voices while censoring conservative ones.

Trump’s allegations against these social media companies go a step further and relate that the massive influence Twitter, Facebook, and Google have over political opinion is enough to tip them out of the realm of private businesses and into the realm of “state actors” or businesses that operate in tandem with the government.

The First Amendment explains that “Congress shall make no law … abridging the freedom of speech, or of the press.” Yet considering how these social media companies helped relay important information passed on by government entities such as the CDC during the global pandemic, Trump’s team may argue that moves like this are evidence of these social media platforms acting as public, government entities, or “state actors.”

In his lawsuit, Trump explains, “Twitter has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Decency Act, and willful participation in joint activity with federal actors.”

Attorney Sharp notes that in an earlier case dealing with President Trump blocking users from interacting with his Twitter account, Justice Clarence Thomas signaled social media companies just might be common carriers. As Justice Thomas noted in his concurring opinion in that case, “…applying old doctrines to new digital platforms is rarely straightforward.”

While Facebook has determined that Trump’s suspension will be upheld for two more years, the former president’s platform of choice while in office, Twitter, has chosen to permanently ban him. YouTube weighed in last March and explained that it would take Trump off of suspension once they deem that “the risk of violence has decreased.”

At the close of his presidency, Trump routinely threatened legal action against several entities and individuals, though he seldom followed through. With this latest lawsuit, analysts speculate that it will likely fail. However, this novel argument of private companies operating as “state actors” could hold some merit. In an unconventional presidency such as Trump’s, it comes as no surprise that a class-action lawsuit against these tech giants would hold such an unconventional argument as well.